On 8/8/17, a federal district court judge in Connecticut concluded that federal law does not preempt a Connecticut state statute that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The decision contains an excellent review of the state of the law in this area (including a footnote a listing all states that have laws prohibiting discrimination against employees who use medicinal marijuana). The case is Noffsinger v. SSC Niantic Operating Company, LLC, (D. Conn. 8/8/17).

No federal law preemption. In Noffsinger, a nursing home rescinded a candidate’s job offer as a director of recreational therapy after she tested positive for marijuana in pre-employment drug screening -- even though she provided evidence that a marijuana product was prescribed to treat her PTSD and that she only took the drug at night before bedtime and was not under the influence of marijuana at work.   The nursing home filed a motion to dismiss arguing that the Connecticut law was preempted by several federal laws, including the Controlled Substances Act (CSA) (which makes it a federal crime to use, possess or distribute marijuana), the ADA and the Federal Food, Drug and Cosmetic Act (FFDCA). 

Federal laws do not regulate employment decisions. The court rejected arguments that the CSA preempts the Connecticut law’s employment protection provisions on the ground that the CSA does not make it illegal to employ a marijuana user and, in fact, does not “purport to regulate employment practices in any manner.” The court similarly rejected arguments that provisions of the ADA addressing drug testing and illegal drug use preempt the Connecticut law because the ADA provisions do not expressly state that an employer may prohibit an employee from the illegal use of drugs outside of the workplace. The court reasoned that just because the ADA permits employers to engage in drug testing, this does not mean that it was intended to preclude the States from adopting legislation prohibiting employers from taking adverse acting against someone who fails a drug test.  The court also emphasized that there was no evidence that the candidate’s medicinal use of marijuana would adversely impact her job performance.

Being a federal contractor not a defense either. The court also rejected an argument by the nursing home that it was exempt from the Connecticut law because as a nursing facility it is subject to federal regulations that require compliance with federal laws and since the CSA prohibits marijuana use, the nursing home would be violating federal law by hiring the employee. The court abruptly dismissed this argument commenting that it “borders on the absurd,” stating that the act of merely hiring a medical marijuana user does not itself violate the CSA or any other federal law.

Lessons for Employers? This is the second court decision in a month to conclude that state laws legalizing marijuana provide protections to employees in the workplace.  Employers should anticipate that there will be additional pro-employee rulings in this regard.  It may be time to review drug-testing policies, at least for those states with laws permitting the use of medical marijuana. In that regard, in addition to Connecticut, the following states have medical marijuana laws that include explicit anti-discrimination protections in the workplace: Arizona; Delaware; Illinois; Maine; Nevada, new York; Minnesota and Rhode Island. Moreover, while the Massachusetts law does not contain employment discrimination provisions, the Supreme Judicial Court of Massachusetts recently ruled in Barbuto v. Advantage Sales & Marketing LLC that employers may be required to accommodate a candidate’s or employee’s medical use of marijuana by, for example, modifying drug testing policies. 

Employers can still decline employment if there is evidence that marijuana use could adversely impact job performance or create a safety risk. It also remains to be seen whether or not the Trump administration will make efforts to curtail this latest judicial trend as the administration has indicated that it remains committed to having marijuana classified as an illegal controlled substance.